COMMISSIONER OF INCOME TAX Vs. DALUMAL SHYAMUMAL

JUDGEMENT

(1.) THIS is an IT reference made by the ITAT (Tribunal) under Section 256 (1) of the IT Act at the instance of Revenue (i. e. , CIT) in RA No. 119/ind/1998 arising out of an order dt. 6th May, 1998, passed by Tribunal in ITA No. 393/ind/1994 to this Court for answering following question of law :

(2.) ONE Dalumal Shyamumal was an assessee. For the asst. yr. 1990-91, the AO passed an assessment order on 24th Feb. , 1993 (Annex. A), under Section 143 (3) of the Act. It is not in dispute that assessee had expired prior to passing of the assessment order. It is also not in dispute that AO had the knowledge of the death because a letter to that effect was sent to AO on 11th July, 1991, i. e. , much prior to passing of order on 24th Feb. , 1993. It is also not in dispute that no notice as contemplated under Section 159 of the IT Act was sent to any of the legal representatives of assessee. In such circumstances, the order passed by AO on 24th Feb. , 1993, becomes a nullity having been passed against the dead person [see CIT v. Amarchand N. Shroff (1963) 48 ITR 59 (SC) and ITO v. Ram Prasad and Ors. (1972) 86 ITR 145 (SC)].

(3.) IN a case where an assessee dies pending any assessment proceedings, the provisions of Section 159 of the Act get attracted. It is the duty of AO to ensure compliance of Sub-section (2) of Section 159 before any orders are passed.